Baltimore's pretrial injustice

January 06, 2003|By Douglas L. Colbert

A CRISIS is brewing in Baltimore's overcrowded pretrial jails, where about 3,250 people await trial for mostly nonviolent offenses. And few in the criminal justice system seem interested in responding.

At November's monthly meeting of Baltimore's Criminal Justice Coordinating Council, which includes state officials, the mayor, the police commissioner, judges, prosecutors and defenders, members heard another disturbing account about the conditions poor people face while awaiting trial. Commissioner LaMont W. Flanagan of the state's Division of Pretrial Detention and Services described a growing pretrial population that is nearly 30 percent over capacity.

Mr. Flanagan, declaring that jail officials were likely in violation of a federal court order that caps at 3,000 the number of people who can be held in pretrial detention, announced that he had imposed emergency measures. Some detainees were being doubled-up in cramped 9-foot-by-12-foot cells. Without sufficient bed space, he said, he had assigned 150 detainees to sleep in toy plastic boats.

Mr. Flanagan identified 511 prisoners - accused but not convicted of offenses that were to be tried in district court - who were to remain in jail solely because they could not afford bail ranging from $25 to $500. Many of them with families spent the holidays there. Some lost their jobs.

Council members said surprisingly little after Mr. Flanagan made his dramatic presentation. Only one or two questioned the use of money bail for the economically disadvantaged. Very few seemed willing to tackle the overcrowding crisis. Most appeared unwilling to acknowledge that a significant proportion of the pretrial population could safely be released and supervised rather than be warehoused for one or two months before returning to court.

Council meetings have provided a valuable forum for discussion among the disparate components of the criminal justice apparatus. But its members tend to follow a crippling unwritten rule: refrain from disagreeing publicly with one another.

Increased arrests for low-level crimes continue to put pressure on the jail and court system and detract attention from violent crimes and offenders. Yet council members avoid clashing with the current police strategy to step up the enforcement of minor crimes in order to keep some people off the street and in jail for significant periods. This probably explains why the police want to retain power to bring charges rather than permit prosecutors to decide who should be prosecuted.

This heightened police attention to low-level crimes causes many to be jailed and then trapped in the money bail system. Typically, those arrested pay a bondsman's nonrefundable 10 percent fee or remain incarcerated. Ironically, at least two out of three impoverished detainees serve extended jail time for crimes that ultimately are not prosecuted.

What's to be done?

Council members must work to build a consensus that permits judicial officers to use a proven alternative to jail overcrowding: supervised release. Determining an individual's eligibility requires that judges obtain verified information about the individual's family and community ties to assess reliability for returning to court. Once this assessment is made, Mr. Flanagan's pretrial services division has had excellent results. The accused return for trial. Many receive needed social services.

At the meeting, council members unanimously approved a proposal that will permit volunteer law students to interview and learn more about the pretrial population. Verifying a prisoner's residence, family, employment and criminal background will provide an accurate profile about the proportion of detainees being jailed unnecessarily.

Council members should use this information to put into practice the state policy that says people accused of nonviolent offenses are entitled to regain liberty on the least onerous conditions. Pretrial incarceration should be reserved only for those who pose a flight risk or present a danger to another person.

Taxpayers are willing to pay this substantial expense. But they should no longer be asked to spend millions of dollars to hold people in deplorable conditions solely because these prisoners are short cash and cannot make bail. They would much prefer spending a fraction of this so that minor offenders could receive substance abuse and job counseling.

Council leadership is urgently needed. It should advocate for further investing in pretrial services to help corrections officials reduce jail overcrowding. Court administrators, defenders and prosecutors have vital roles in closely monitoring the pretrial population and providing an important counterweight to the escalating arrest policy of the police.

Douglas L. Colbert is a professor at the University of Maryland School of Law.